Provisions in two bills incorporating international treaties are beyond the powers of the Scottish Parliament because they affect powers retained by Westminster, the UK Supreme Court ruled today.
Five Justices unanimously held that three provisions in the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, and two in the European Charter of Local Self-Government (Incorporation) (Scotland) Bill, conflicted with s 28(7) of the Scotland Act 1998. A further section in the UNCRC Bill, which was admitted on its face to be beyond Holyrood's powers, was not capable of being saved by the power given to the courts to interpret the law so as to be within devolved powers.
The challenge was brought by the Advocate General for Scotland and the Attorney General before the bills, passed at Holyrood, received Royal Assent. The bills now have to be considered further by the Parliament.
Lord Reed (President), Lord Hodge (Deputy President), Lord Lloyd-Jones, Lord Sales and Lord Stephens found that the offending provisions were ss 6, 19(2)(a)(ii), 20(10)(a)(ii) and 21(5)(b)(ii) of the UNCRC Bill, and ss 4(1A) and 5(1) of the ECLSG Bill.
Giving the judgment of the court, Lord Reed said that s 28(7) of the Scotland Act preserved the unqualified power of the UK Parliament to make laws for Scotland. If any provision of an Act of the Scottish Parliament purported to modify s 28(7), it would contravene s 29(2)(c) of the Scotland Act, read with para 4(1) of sched 4, and would therefore fall outside the competence of the Scottish Parliament.
Section 19(2)(a)(ii) of the UNCRC Bill, which provided that "So far as it is possible to do so", an Act of the UK Parliament "must be read and given effect in a way which is compatible with" the UNCRC, would require the courts, in certain circumstances, to give statutory provisions a meaning and effect which conflicted with that intended by the UK Parliament. A qualification on the UK Parliament’s legislative power would be imposed as a result. Accordingly, as it would impliedly amend s 28(7) of the Scotland Act, s 19(2)(a)(ii) would be outside the legislative competence of the Scottish Parliament.
This reasoning applied also to s 4(1A) of the ECLSG Bill, which was to the same effect.
Section 20(10)(a)(ii) of the UNCRC Bill would enable the courts to strike down and invalidate provisions of Acts of the UK Parliament which are incompatible with the UNCRC, provided the relevant Act of Parliament was enacted before s 20 came into force. Allowing existing legislation to remain in force unamended was one of the ways in which the UK Parliament exercised its power to make laws for Scotland. Making the continuation in force of Acts of the UK Parliament conditional on the courts’ decision that they were compliant with the UNCRC would therefore affect the power of the UK Parliament to make laws for Scotland. Section 20(10)(a)(ii) was therefore also outside legislative competence because it would modify s 28(7) of the Scotland Act.
Similarly, s 21(5)(b)(ii) of the UNCRC Bill, which would confer on the courts the power to declare that a subsequent Act of the UK Parliament was incompatible with the UNCRC, would affect the power of the UK Parliament to legislate for Scotland, insofar as it would impose pressure on the UK Parliament to amend or repeal the relevant Act to remove the incompatibility, would make it difficult if not impossible for public authorities to continue to implement the relevant Act, and could result in the Scottish ministers adopting regulations to amend or repeal the relevant Act. This would also modify s 28(7) of the Scotland Act.
The same reasoning applied to s 5(1) of the ECLSG Bill, which was to the same effect.
Regarding s 6 of the UNCRC Bill, which would make it unlawful for any public authority, carrying out any function, to act in a way which is incompatible with the UNCRC, it was not disputed that this provision was, on its face, outside legislative competence of the Scottish Parliament. Lord Reed rejected an argument that the bills could be "read down" so as to remain within competence. Such an approach, he said, would require the courts to assume a function which went beyond interpretation as ordinarily understood. It would also result in the circumvention of the system of pre-enactment scrutiny established by ss 31-33 of the Scotland Act, the operation of which was dependent on legislative provisions being drafted with sufficient clarity to enable the requisite assessments to be made by the person in charge of the bill, the Presiding Officer, and, if a reference was made, the Supreme Court.
"What is striking in the present case", he observed, "is that there has been no attempt to draft s 6 of the bill in such a way as to provide a clear and accessible statement of the law. On the contrary, there has been a decision to draft and enact a provision whose plain meaning does not accurately represent the law, and to rely on the courts, applying s 101(2) of the Scotland Act, subsequently to impose a variety of qualifications upon the provision, on a case by case basis, so as to give it a different effect which is lawful. For the reasons which I have explained..., that cannot be how Parliament intended s 101(2) to be interpreted and applied."
At the outset of his judgment, Lord Reed commented that neither reference took issue with the Scottish Parliament's decision to incorporate the treaties. He stated: "The Scotland Act must be interpreted in the same way as any other statute. The courts have regard to its aim to achieve a constitutional settlement and therefore recognise the importance of giving the Scotland Act a consistent and predictable interpretation, so that the Scottish Parliament has a coherent, stable and workable system within which to exercise its legislative power. That is achieved by interpreting the rules as to competence in the Scotland Act according to the ordinary meaning of the words used."
However Deputy First Minister John Swinney, responding to the judgment, said that "it lays bare the weakness of, and the limits in, the devolution settlement. The ruling means it is outwith the power of the Scottish Parliament to pass legislation it considers necessary to fully ensure the rights of Scotland’s children are protected".